An important reminder for employers when considering whether to dismiss an employee for misconduct. Do not underestimate the importance of considering the fairness and substantial merits of the case for dismissal.

In a misconduct case the temptation can be to adopt a tick box approach to showing:

  • the employer’s belief of guilt of misconduct
  • that there are reasonable grounds for that belief and
  • that the employer has undertaken a reasonable investigation in the circumstances.

If the employer is then challenged on its application of this classic test, it typically can bat away the challenge by confidently asserting that an employment tribunal is not able to substitute its view for that of the dismissing employer.

The Court of Appeal’s recent decision in Robert Newbound v Thames Water Utilities Limited reminds employers not to be overly confident that its views are reasonable. Firstly, the band of reasonable responses is not infinitely wide. Secondly, on the same facts that were before the employer, an employment judge is entitled to reach a conclusion that no reasonable employer would have dismissed in these circumstances, without it being accused of placing itself in the position of the employer.

There is no error in law in these circumstances. Newbound is also authority for the risk to employers where two employees involved in the same incident are treated differently. Summarily dismissing a more junior employee for gross misconduct while only warning the more senior employee is a simple recipe for an unfair dismissal finding.